Government wants Opry flood lawsuit dismissed

KRISTIN M. HALL, Associated Press
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Feb 14, 2013 at 6:16 AM

NASHVILLE, Tenn. (AP) — An attorney for Gaylord Entertainment Company argued in federal court Wednesday that the Army Corps of Engineers was negligent in its response to massive flooding in 2010 along the Cumberland River that damaged its property including the Grand Ole Opry.

Gaylord sued the agency over $250 million in damage to the Opry, its hotel and convention center after floodwaters topped levees surrounding their property in May 2010. The hotel was evacuated and closed for several months for renovations and waters damaged the famous theater where the Grand Ole Opry is held.

The flooding left 26 people dead, including 11 in Nashville, and caused an estimated $2 billion worth of damage after 17 inches of rain fell over a weekend.

Attorney Robert Patterson argued that corps officials failed to lower the water level behind the Old Hickory Dam despite warnings from the National Weather Service that heavy rains were coming. Then, he said, they suddenly released water from the dam to prevent the water from overtopping the dam that pushed the river above the 100-year flood plain.

Department of Justice attorneys representing the Army Corps asked District Court Judge Todd Campbell to dismiss the lawsuits filed by Gaylord and other businesses. They argued that federal law prevents the government from being held liable for flood damage.

The hearing involved three separate lawsuits filed against the corps over the flood. Gaylord filed suit along with the A.O. Smith Corporation, which is an Ashland City-based commercial water heater manufacturing company that also sustained property damage in the flood. A second lawsuit involves insurance companies and other businesses including Nissan North America and Gibson Guitar Corp. A third was filed by a Nashville attorney and his wife who had property damage at their home in Madison.

Justice Department attorney Stephen Handler said that the claims of negligence are barred by an immunity provision in the Flood Control Act. He further argued that Old Hickory was part of a system of dams that were authorized by Congress to control flooding in the Cumberland River Basin, but that these protections were not enough to prevent damage caused by the historic amount of rain.

He argued that uncontrolled rain runoff was the cause of the flooding and the Old Hickory dam was designed to allow water to pass through.

Patterson, who represents both A.O. Smith and Gaylord, said the dam was not a flood control project, but instead functioned as a "flood causing project." He said the corps didn't lower water levels behind the dam when forecasts were predicting several inches of rain, which he said was required of them as operators of the dam.

"When you build a dam, you have a duty to protect those downstream of the dam," he said.

He said that the flooding that created the property damage actually came after the corps started releasing large amounts of water from its reservoir that threatened to overtop the dam.

Patterson also said the corps and the National Weather Service used incorrect data in their prediction models to forecast how high the river would rise.

But another government attorney, Philip MacWilliams, said that the operating manual doesn't specify what the water level behind the dam should be at certain times and that operators had to rely on their judgment and discretion while making decisions during the flood.

"The corps' one and only priority was to prevent the overtopping of the dam," MacWilliams said.

Judge Campbell did not say when he would rule on the motion to dismiss the lawsuits.